STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMCOR INVESTMENT CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3249

) THE BOARD OF COUNTY COMMISSIONERS ) OF SEMINOLE COUNTY, et al., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on March 11, April 6-9 and April 30, 1987 in Sanford, Florida, and (by telephonic deposition) on May 14, 1987 in Reston, Virginia. The issue for determination in this proceeding is whether the petitioner, Amcor Investment Corporation, is entitled to approval of its application for a Development of Regional Impact for the Plantation, a planned residential community and mixed use development to be located in northwest Seminole County, Florida.

APPEARANCES

For Petitioner: John C. Dent, Jr., Esquire

John F. Cook, Esquire Culverhouse & Dent Post Office Box 3269

Sarasota, Florida 33578

Bram E. Canter, Esquire Ralph Haben & Associates Post Office Box 10095

306 North Monroe Street Tallahassee, Florida 32301

Stephen F. Story, Esquire Culverhouse, Botts & Culverhouse

Post Office Box 23688 Tampa, Florida 33607

For Respondent: Nikki Clayton, Esquire

Lonnie N. Groot, Esquire Office of the County Attorney 1101 East First Street Sanford, Florida 32771

For Intervenor: Thomas B. DeWolf, Esquire Markham Woods DeWolf, Ward & Morris, P.A.

Association and 1475 Hartford Building Friends of the 200 East Robinson Street Wekiva River Orlando, Florida 32801

For Intervenor: Richard S. Jackson, Esquire Friends of the Clayton & Teal, P.A.

St. Johns, Inc. 114 West Rich Avenue

Deland, Florida 32720

For Intervenor: Larry Keesey, Esquire

Florida Jeffrey N. Steinsnyder, Esquire Department of David Jordan, Esquire

Community Florida Department of Community Affairs Affairs 2571 Executive Center Circle E.

Tallahassee, Florida 32301

For Intervenor: Gerald Livingston, Esquire East Central Post Office Box 2151 Florida Regional Orlando, Florida 32802 Planning Council

For Intervenor: Judy Johnson, Esquire League of Women Route 1, Box 318 G Voters Hawthorne, Florida 32640

INTRODUCTION

Petitioner, Amcor Investment Corporation, timely filed a Notice of Appeal from the Board of County Commissioners of Seminole County's (Seminole County) "Development Order - Plantation Development of Regional Impact" dated April 1986. That Order denied the proposed Plantation Development of Regional Impact (Plantation) on the grounds that the proposed project was not consistent with the existing Comprehensive Plan. The Order further found that a land use policy amendment would not be appropriate because the County is currently preparing a comprehensive plan. In addition, the County denied the requested rezoning from A-I to PUD because "it is not compatible with, nor does it further the objectives, policies, land uses and densities or intensities of the comprehensive plan." As a condition of approval, the Development Order notes that the applicant could plat a subdivision with a maximum density of one dwelling unit per acre subject to the requirements of the Land Development Code, or it could also wait until the County's Comprehensive Plan was adopted or amended in accordance with Chapter 163, Florida Statutes, and then propose a project compatible with such a Plan.

In support of its position that it is entitled to approval of the Plantation, the petitioner presented the testimony of Hugh W. Harling, Jr., who was accepted as an expert in drainage engineering; Michael D. Sims, accepted as an expert in soils, hydrogeology, groundwater chemistry and waste water disposal systems; Peter Gottfried, accepted as an expert in river and lake ecology and the impacts of upland development on waters, lakes and rivers; Carol Lotspeich, accepted as an expert in wetland ecology and plant taxonomy; Turget Dervish, accepted as an expert in traffic planning and traffic engineering; and Anthony Wiles, accepted as an expert in land planning and local government comprehensive planning and zoning. Received into evidence were petitioner's Exhibits 1 through 3, and official notice was taken of United States House of Representatives, Report Number 100-27, 100th Congress (1st Session).

Testifying on behalf of the respondent, Seminole County, were Ben Watts, Deputy Assistant Secretary of the Florida Department of Transportation for District Five; Bob Chorvat, Manager of the Seminole County Parks and Recreation Department; Gerald Brinton, Executive Director of the Seminole County Expressway Authority; and Cliff Guillet, Executive Director of the East Central Florida Regional Planning Council. Testifying as expert witnesses for Seminole County were Jerry McCollum, County Engineer and Deputy Director of the Seminole County Public Works Department, who was accepted as an expert in traffic and transportation engineering and transportation planning; James J. Bible, Director of the Environmental Services Department of Seminole County, who was accepted as an expert in water and sewer engineering, planning and management; and Roger Neiswender, who was accepted as an expert in land use planning, public administration, and land development regulations. Received into evidence were Seminole County's Exhibits A through J.

Testifying on behalf of intervenors, Markham Woods Association and Friends of the Wekiva River, were Arthur Saarinen, Jr., who was accepted as an expert in environmental engineering, including water resources, water supply and wastewater treatment and disposal; Larry Roesner, accepted as an expert in water resources engineering and urban stormwater runoff management; and Jim Thomas, accepted as an expert in biology, particularly Central Florida environmental biology. Testifying on behalf of intervenor, Friends of the St. Johns, Inc., was Polly Miller. Testifying on behalf of intervenor, League of Women Voters, were Virginia J. Bowman and Phyllis Saarinen. These intervenors did not offer any exhibits, into evidence.

Intervenors, the Florida Department of Community Affairs and the East Central Florida Regional Planning Council, did not call any witnesses nor offer any exhibits into evidence, but participated in relation to issues involving applicable procedures and rules of law.

The parties stipulated into evidence Stipulated Exhibits I through XIV.

On the evening of April 7, 1987 a Public Comment Session was held at which the following persons testified: Harold Herbst; Ray Edwards; Paul E. Erisman; Tommy Entenza; Edward D. Yokley; Frank Shelton; Joanne Wenger; Carolina Nurik; Pat Burkett; Vinod Valloppillil; Polly Miller; Peter O. Jamison; Pat Harden; Walt Thompson; Deborah Shelly; Dan Pelham; Glenn Velez; Bill Riske; Russ Moncrief; Darlene Yanda; Gary Twitchell; Nancy Prine; Charles Lee; Ray Valdes;

1. Davis; Ursula Best and Fred Harden. Seven Public Exhibits were received into evidence.

   
   

   Subsequent to the hearing, the petitioner and the County filed various motions or requests for official recognition of documents. To the extent that such motions or requests have not been previously ruled upon, they are denied.

   
   

   The petitioner, the County and several of the intervenors have submitted post-hearing proposed recommended orders and/or memoranda of law. To the extent that the parties' proposed factual findings are not included in this Recommended Order, they are rejected for the reasons set forth in the Appendix hereto.

   
   

   FINDINGS OF FACT

   
   

   Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

   1. Petitioner Amcor Investment Corporation is the current owner of a 573 acre parcel of land located in northwest Seminole County on the east side of the Wekiva River and south of Markham Road. The property is zoned A-I (agricultural). In 1984, Richmond American Homes, petitioner's predecessor in title, sought to rezone this property from A-I to PUD (Planned Unit Development) for a mixed use development that would contain approximately 1850 single family dwelling units, a commercial site and an 18-hole golf course. The Seminole County Planning and Zoning Commission recommended denial of this rezoning request by a unanimous vote. In November of 1984, the Board of County Commissioners also unanimously denied the rezoning request, but did so without prejudice to the developer to institute a Development of Regional Impact study. (Stipulated Exhibits VIIe and VIIf).

      
      

   2. The initial Plantation application for Development Approval was submitted by Richmond American Homes to the East Central Florida Regional Planning Council (ECFRPC) on or about February 28, 1985. (Stipulated Exhibits IIIa and VIIIc). This application proposed a rezoning of the property from A-I to PUD, and the project consisted of a phased 'mixed use development containing 1600 residential units, an 8.3 acre neighborhood commercial site, a 15.6 acre school site, a 3.5 acre day care center site, approximately 8.5 acres to be utilized for a sewage treatment plant and a water plant, approximately 188 acres of parks, open spaces, lakes and preservation areas, and approximately 29 acres for roads and rights-of-way. (Stipulated Exhibits IIIa and VIIIc).

      
      

   3. With full knowledge of the preceding rezoning denial and the ongoing DRI proceeding, petitioner Amcor purchased the subject 573 acres and continued to pursue approval for the Plantation project. (Seminole County Exhibits B through F).

      
      

   4. The Plantation site is in the extreme northwest portion of Seminole County and is abutted on the west by the Wekiva River. This river is designated as an Outstanding Florida Water, a Florida Aquatic Preserve, a Wild and Scenic River and a State Canoe Trail. The only existing road abutting the Plantation site is Markham Road, to the north. The properties adjacent to the site are generally characterized as "rural vacant land." (TR 4/9/87 at p. 128).

      Utilizing existing roads, Interstate Highway 4 is approximately four to five miles east of the Plantation site.

      
      

   5. The 1600 residential units described in the Application for Development Approval are identified as 12 percent single family manor, 73 percent single family patio and 15 percent single family townhouse villa. At the final public hearing before the Seminole County Board of County Commissioners, and at the hearing before the undersigned, the petitioner offered evidence of a proposal with 1240 residential units. Also, for the first time, petitioner offered evidence at the hearing before the undersigned of a second scaled-down proposal with only 1088 residential units. Each of the three developmental scenarios contain a similar number of acres devoted to the commercial site, school site, sewage treatment plant and water plant sites, day care center site and other open spaces and rights-of-way. (Petitioner's Exhibits 1, 2 and 3).

      
      

   6. There is some question as to the character of the land itself. It is undisputed that 93.67 acres of the Plantation site are wetlands. Approximately

7.4 acres are forested with a zeric oak community. While petitioner has assigned an upland classification to 379.8 acres of the site, some of this land is dominated by pond pine mixed with slash pine. (Stipulated Exhibit IIIa, p. 12-11; Transcript, 4/30/87 at p.157). Pond pine is a classification for wetlands. (Transcript, 4/30/87, pp. 94-100).

7 There are currently no central sewer services available to the Plantation site. While Seminole County is planning to construct a regional wastewater treatment plant north of the Plantation site, it has not yet begun such construction nor has it applied for the requisite permits to do so. Also, County planners have anticipated that the Plantation site, would receive a maximum of 573 units of single family residence-sewer capacity based upon the assumption of one dwelling unit per acre development. (Transcript 4/9/87 at p. 55). County water services currently do not exist for the Plantation site.

1. Petitioner proposes the use of on-site water and sewage treatment plant facilities, as well as its own water supply source. Detailed technical plans for the design of these facilities, especially for the 1240 and 1088 residential unit plans, have not been submitted and would be the subject of future permitting proceedings. Petitioner has obtained a consumptive use permit from the St. Johns River Water Management District for the withdrawal of on-site potable water in an amount which would serve a portion of its projected need. The plans for sewage treatment include a secondary treatment package plant, percolation ponds and several spray fields in high elevation locations. The closest disposal site would be located one-half mile from the Wekiva River if 1600 residential units are constructed and even further away if 1240 or 1088 units are constructed. By referring to published averages regarding levels of treatment, petitioner presented evidence that a central sewage treatment system would have less adverse impacts upon the water quality of the Wekiva River than the placement of some 350 to 500 individual septic tanks on the Plantation site. However, any meaningful comparison between the two methods of treatment would be dependent upon site-specific conditions (such as ground elevation) as well as the level and degree of maintenance of the facilities for the two forms of treatment. The sewer facility system proposed by the petitioner would require continual on-site operators. It would not be economically feasible to construct and operate a package water and sewer plant if the property were developed at a density of one dwelling unit per acre.

   
   

2. The petitioner has indicated its desire and agreement to tie into the regional water and/or sewer facilities when and if they become available. Petitioner also intends to dedicate to Seminole County the proposed on-site water and sewer plants. However, County officials do not desire to accept or operate such plants (Transcript, 4/9/87, pp. 58-60).

   
   

3. The proposed stormwater management system for the Plantation includes several retention/detention ponds, with overflow travelling hundreds of yards prior to entering the Wekiva River. Buffers are planned along the wetland areas and the Wekiva River, and it is anticipated that the vegetation in those areas will take up nutrients and filter the water prior to any discharge into the River. Any overflow would sheet flow over berms near the River and there would be no point source discharge to the Wekiva River. The amount of stormwater runoff would, of course, be dependent upon the amount of impervious surface created by the development, as well as the manner in which the berms are maintained.

   
   

4. Petitioner has agreed to donate 15.6 acres toward a 50-acre high school site, with the remaining acreage coming from property to the south of the Plantation. At least some of the 15.6 acres consist of swamp soils, and there was no evidence that the abutting landowners had also agreed to dedicate acreage to be, combined with acreage from the Plantation site. Petitioner has agreed to contribute to the School Board Commitment Fund if the County finds the 15.6 acres unsuitable as a school site. (Stipulated Exhibit VI, p. 4-5).

5. The proposed project will have urban levels of fire and police protection and service from current county facilities. The petitioner has further agreed to contribute to the Fire Impact Fund. (Stipulated Exhibit VI, at p. 4-5).

   
   

6. The petitioner's transportation proposal consists of a multi-phase program which includes a traffic monitoring analysis at the completion of each phase. Many of the roadways associated with the Plantation site are currently substandard facilities with regard to their width and sight distances. During Phase I of the proposed development, petitioner plans to make minor traffic and roadway improvements, such as the addition of turn lanes, signalization and the like. Major capacity and expansion improvements are contemplated for Phases II and III of the project. The extent and nature of such improvements will be based upon the results of traffic monitoring and conditions existing at the time of Phase I completion. While a westward extension of Lake Mary Boulevard was initially contemplated, it was not clear from the petitioner's evidence that such an extension would be necessary if the number of residential units is reduced from 1600 to 1240 or 1088. Specific plans for the manner of, or costs associated with, the acquisition of rights- of-way for the major roadway improvements had not yet been determined at the time of the hearing. During the hearing, the County and the intervenors presented evidence of certain defects with regard to the petitioner's traffic impact assumptions and proposals. These included the number of vehicle trips assigned for townhouses, the actual location of schools in the area, the internal capture rate, the potential future nature of the surrounding property if the Plantation site is developed as proposed and speed flow relationships on existing roads. (Transcript, 4/8/87, pp. 167-171). If adequate monitoring and analysis at each stage or phase of development were made a condition for approval, so that the actual traffic generated by the project could be evaluated, these "defects" could be cured.

   
   

7. Petitioner's transportation plan relies upon several potential roadway improvements which are either still in the planning stage and currently unfunded or are so remotely located from the Plantation site as to be anything more than marginally beneficial. Seminole County does engage in a transportation planning process to project future need for roadways and Interstate 4 interchange improvements. In doing so, it uses land use data from the Seminole County Comprehensive Plan. In planning for the transportation needs of this area of the County (Planning Area I), there has been no assumption that a development with the density and intensity proposed by the petitioner would be approved. (Transcript, 4/8/87, at p. 193). Indeed, a policy in the Comprehensive Plan as to this area is to discourage urban intensity development that would impact the transportation network in the area of Markham Woods Road, Lake Mary Boulevard and Interstate 4. (Stipulated Exhibit IIa at p. 117).

   
   

8. Seminole County was one of the early advocates of comprehensive planning in Florida. After numerous workshops, reviews and public hearings, the Seminole County Comprehensive Plan (the Plan) was adopted in 1977. It was developed to accommodate a population of 434,000 over a 20-year time frame. The County's current population is approximately 241,000. (Transcript, 4/9/87, at pp. 129-130). The Plan is currently pending review and revision in accordance with the Growth Management Act. (Transcript, 4/9/87, at p. 141).

   
   

9. The Plan consists of two volumes -- the Short Range Development Plan (Stipulated Exhibit IIa) and the Development Framework (Stipulated Exhibit IIb).

   The Development Framework was developed first and established general policies. The Short Range Development Plan was later developed and established specific policies for the ten planning areas denoted in the Plan. (Transcript, 4/9/87, at pp. 98 and 99).

   
   

10. The Plan assigns a classification to each of the ten designated planning areas. The Plantation site is located in Planning Area I, which is designated as the Markham/Paola Area and classified as a General Rural Area. The Plan distinguishes between urban, and rural land uses, noting that "persons choosing a rural life style should not expect to receive urban services, thus, urban zoning and development." (Stipulated Exhibit IIb, pp. B-25 and B-26). The planning areas classified as urban contain detailed and more specific land use and facility proposals. Since the rural areas do not require urban land use, urban zoning or urban services, the Plan's proposals with respect to rural areas are more general, with a strong policy orientation. (Stipulated Exhibit IIa, at p. 43). Thus, while the Plan contains land use maps for urban areas, rural planning areas are intentionally unmapped. (Transcript, 4/9/87, at pp. 127-128). In defining the various land use categories, the Plan defines "General Rural" as follows:

    
    

    This land use is established for rural uses and attendant non-residential uses, residences on five (5) acre sites; recreational or other low intensity uses. Development is encouraged which does not require unincorporated urban facilities. This land use encourages one (I) unit per five (5) acres while permitting one (I) unit per acre. (Stipulated Exhibit IIa, p. 64).

    
    

11. Since there is no map of Planning Area 1, the County applies the policies contained in the Plan to decisions regarding development in that area. Included among the general and more specific policies for General Rural Areas and Planning Area 1 are the following:

    
    

    This use is established primarily for rural residential uses and attendant non-residential uses, residences on five-acre site's, recreational or other low intensity institutional uses. (Stipulated Exhibit IIb, p. B-40).

    To encourage rural development which does not require unincorporated urban facilities, i.e. paved roads, central sewer and water. (Stipulated Exhibit IIb, p. B-40).

    
    

    To adopt a true rural residential use category encouraging residences on five-acre parcels with low intensity institutional uses; discouraging subdivisions; and permitting dwelling units on minimum one acre parcels. (Stipulated Exhibit IIb, p. B-40).

    
    

    To encourage the present land use

    trends established in the Planning Area and in particular, the Rural Community of Paola. (Stipulated Exhibit IIa, p. 113).

    
    

    To discourage strip commercial development among all roads in the Planning Area. (Stipulated Exhibit IIa, p. 114).

    
    

    Absent specific policies providing for higher intensity development (such as interchanges and the Interstate 4 corridor), the only provision for a large scale urban development in a General Rural area is for a New Community development (as authorized in State law) intended for lower income families. (Transcript, 4/9/87, at pp. 121-125; Stipulated Exhibit IIb, p. B-41). The Plantation is not a low income, Federally subsidized housing development. When adopting the Plan, the County rejected urban sprawl patterns (urban movements into non-contiguous remote areas) in favor of a continuation of existing densities and intensified uses along the Interstate 4 corridors. (Transcript, 4/9/87 at pp. 118-120; Stipulated Exhibit IIb, pp. B-30 - B-32). As noted above, the Plan's transportation policies for Planning Area I discourages high intensity development which would impact the transportation network in the area of Markham Woods Road, Lake Mary Boulevard and Interstate 4. (Stipulated Exhibit IIa, p. 117).

    
    

12. Regardless of whether the Plantation project is constructed with 1600 dwelling units, 1240 dwelling units or 1088 dwelling units, it would be an urban, as opposed to a rural, development. (Transcript, 4/6/87 at p. 127 and 4/9/87 at p. 120). Such an urban density development could also serve as precedent for similarly situated properties in the area. With a few exceptions noted below, the development history, patterns and trends, as well as the community character, of Planning Area 1 is rural in nature. (Stipulated Exhibit IIa, pp. 112; Transcript, 4/7/87, Public Session, at pp. 15-35).

    
    

13. There are two planned unit developments located within Planning Area

1. The Heathrow development was approved in 1972, some five years prior to adoption of the Comprehensive Plan. It is located adjacent to Interstate 4. At the time of the Plan adoption in 1977, the Heathrow development was not deemed to be either a land use conflict or a non-conforming zoning. The Kingwood development, approved in 1986, has its primary access point on State Road 46 and residents can access Interstate 4 by travelling about 1/2 to 3/4 of a mile.

   When the Comprehensive Plan was adopted, the Kingwood property was zoned for travel trailers and for single family residences. Kingwood is located in an urban service area, near an industrial park, hotels, other commercial facilities and a County fire station. (Transcript, 4/9/87 at p. 56). Both the Seminole County Planning and Zoning Commission and the Board of County Commissioners unanimously approved the Kingwood development. (Stipulated Exhibit IX).

   
   

   1. Lake Sylvan Park is located in Planning Area I in the vicinity of the Plantation site. This park has no tennis courts, basketball courts or swimming pools. It does have a large open field used for soccer which the County rents to youth organizations on an occasional basis. Lake Sylvan Park is currently a passive recreation park, and the County has no present plans to change this theme. (Transcript, 4/8/87 at pp. 159-162)

      
      

   2. Regional benefits accruing from the Plantation DRI proposal include interim employment during construction of the development and the addition of

      revenue to the tax rolls. (Transcript, 4/9/87, at p. 18). These same benefits would accrue from any new PUD located anywhere within the region. No evidence of statewide benefits was presented, though there is State, regional and local interest in protecting the Wekiva River.

      
      

   3. The East Central Florida Regional Planning Council (ECFRPC) reviewed the Plantation proposal relative to the impacts it may have on regionally significant resources or facilities. The proposal it reviewed contained 1600 dwelling units. By a vote of 9 to 5, the ECFRPC recommended approval of the Plantation proposal with numerous conditions. The conditions imposed included a redesign of the stormwater management system, a reevaluation of the lake depths and establishment and operation of a monitoring station network to insure protection of water quality of the Wekiva River, a two-stage phasing of the development for traffic and road improvements, and plans for the inclusion of boardwalks to minimize disturbances to existing vegetation and to preserve the visual character of the Wekiva River. (Stipulated Exhibit Va). The petitioner has agreed to accept the conditions recommended by the ECFRPC.

      
      

   4. In both its deliberations and in its cover letter forwarding its report and recommendations to Seminole County, the ECFRPC expressed its concerns regarding the consistency of the Plantation proposal with the Seminole County Comprehensive Plan. It was concluded that the consistency issue is one "of local concern, with the rezoning/local government review process being the appropriate forum to address this concern." (Stipulated Exhibit Va, p. 1). The Executive Director of the ECFRPC further noted that

      
      

      This recommendation should not be interpreted to mean that the Regional Planning Council supports or opposes the rezoning of the subject property by the Seminole County Board of Commissioners. This action for conditional approval represents the results of the Committee's review of the project as presented in the Application for Development Approval and stipulates the minimum acceptable criteria by which this project should be developed, should local rezoning approvals be granted. (Stipulated Exhibit Va, p. 2).

      
      

   5. Public hearings were held by both the Seminole County Planning and Zoning Commission and the Board of County Commissioners regarding the Plantation Application for Development Approval. The Planning and Zoning Commission recommended to the County Commission that the DRI application be denied since the proposed development was not consistent with the Seminole County Comprehensive Plan. (Stipulated Exhibits VIIc, VIId and XIV). The petitioner never appropriately offered an amendment to the Plan, and the County did not feel it appropriate to amend the Plan. The Board of County Commissioners voted to deny the application for Development Approval as well as the petitioner's request for rezoning of the property, concluding that the proposal was inconsistent with the Comprehensive Plan. (Stipulated Exhibits VIIa and VIIb).

      
      

   6. The various County-level staff reports submitted in conjunction with the Plantation project will not be recited herein. Their entire contents can be found in Stipulated Exhibits VI, VII, VIII, and XIV and the County's Exhibit H.

      Briefly summarizing, the staff concerns included the proposed density being in conflict with the Comprehensive Plan policies and development trends applicable in Planning Area I; the location of the commercial site being in conflict with the Plan policies regarding strip highway commercial; the size and location of the proposed school site; the method of sewage disposal; the fact that Lake Mary Boulevard is not a programmed roadway scheduled for major improvements by the County and the developer had not demonstrated that rights-of-way had been purchased and had not demonstrated the ability to construct additional roadways without long-term public commitments; and that any rezoning with the densities proposed would first require an amendment to the Plan.

      
      

   7. Although permitted the opportunity to do so, the developer offered no evidence that refusal to permit a development with the densities proposed would constitute an unlawful taking of property. Accordingly, Seminole County's Motion for Summary Recommended Order on this issue was granted. (Transcript, 4/8/87, at p. 149).

      
      

   8. Members of the general public who commented on the proposed Plantation development were concerned with the project's negative impact on the rural character of the community. More specifically, their concerns included the potential adverse effects of the Plantation upon traffic, noise and air pollution, population increases, wildlife, the protection and preservation of the Wekiva River, the precedent set for future high intensity development, and property values. Many members of the general public also expressed concerns regarding the integrity of the local government decision-making process and responsible growth management.

      
      

   9. There was no opposition to the standing of any of the intervenors to participate as intervening parties in this proceeding.

      
      

      CONCLUSIONS OF LAW

      
      

   10. In determining whether a Development of Regional Impact (DRI) is entitled to approval, there are four categories of interests which must be evaluated and balanced against each other. The first is that of the owner/applicant/developer, whose interest includes the preservation of existing property rights.

       
       

   11. By nomenclature and definition, a DRI involves regional interests. Thus, the second category of interests to be evaluated are regional in nature and include the impacts of the proposed development upon the environment and natural and historical resources of the region, the economy of the region, public facilities, transportation facilities, housing, energy and other concerns of a regional nature. The third category of interests to be considered are those of the local government, which include the right to make local land use planning and zoning decisions. Finally, there is the State interest, which includes the health, safety and welfare of the public and the State's exercise of its police powers in protecting those interests. As noted in Caloosa Property Owners Association, Inc. v. Palm Beach County Board of County Commissioners, 429 So.2d 1260 (Fla. App. 1st, 1983), these four sets of interests can be narrowed into primarily two groups -- developers on one hand, and on the other, governmental planners and permitting authorities. The comprehensive, multi-agency review process set forth in the Environmental Land and Water Management Act, Chapter 380, Florida Statutes, requires a balancing of the often conflicting interests listed above. As stated in Graham v. Estuary Properties, Inc., 399 So.2d 1374, at 1377 (Fla. 1981), Chapter 380

       requires a balancing of the interests of the state in protecting the health, safety, and welfare of the public against the constitutionally protected private property interests of the landowner.

       
       

   12. Likewise, there must be a balancing of the interests of local government in making local land use decisions and the interests of regional and statewide planning agencies in making decisions regarding developments determined to be regionally beneficial or harmful. The comprehensive scheme of review within Chapter 380, Florida Statutes, allows for a balancing of compelling, and often competing, State or regional interests, local planning and zoning decisions and private property rights.

       
       

   13. Throughout this proceeding, the parties have disagreed as to the appropriate role of the State, through the Florida Land and Water Adjudicatory Commission (FLWAC), when an appeal is taken from a local government Development Order which has concluded that the planned development is inconsistent with its local comprehensive plan, and has thus denied the DRI application and the attendant request for rezoning. Counsel for the parties have argued and briefed the issue extensively and thoroughly. In summary form, it is the position of the applicant that FLWAC must review and address all aspects of the Development Order, that the proper standard of review by FLWAC is a preponderance of the evidence, and that the County's initial determination regarding comprehensive plan consistency is not entitled to any presumption of correctness. In contrast, the County and the Intervenors strenuously contend that when a local government determines that a particular development is inconsistent with its comprehensive plan, and thus denies a request for rezoning or approval, that decision is in the nature of a legislative function and is presumed to be correct. It is urged that the appropriate standard of review on appeal to FLWAC is the "fairly debatable- standard applied by Circuit Courts when reviewing local zoning decisions. The County asserts that a local government's decision of comprehensive plan inconsistency can only be overturned when there is an overriding state or regional benefit or interest to be realized from the proposed development. Similarly, counsel for the Department of Community Affairs contends that a DRI applicant must establish by a "preponderance of the evidence" that its proposed development has regional benefits that outweigh local concerns. Absent such a demonstration, the "fairly debatable" standard of review must be applied by FLWAC to a county's rezoning or comprehensive plan consistency determinations. As noted above, the parties have thoroughly briefed this issue, citing numerous cases in support of their respective positions. Unfortunately, none of the cited cases are directly in point.

       
       

   14. As in any permitting or licensing proceeding, a DRI applicant has the initial burden of going forward and the ultimate burden of establishing that the proposed activity meets the statutory and regulatory criteria for approval. The criteria for DRI approval are stated in rather broad terms with respect to regional impacts. The law does not require that the project be impact-free.

       The DRI process is one of balancing favorable and unfavorable regional impacts based upon all the evidence. Graham v. Estuary Properties, Inc., 399 So. 1374 (Fla. 1981). Thus, the burdens of proof in a DRI proceeding may shift back and forth, with the applicant having the ultimate responsibility to demonstrate that any adverse regional impacts can be adequately cured. With regard to local impacts, the statute requires the local government to consider whether, and the extent to which, the development is consistent with the local comprehensive plan and local land development regulations. Section 380.06(14)(b), Florida

       Statutes. Each party in a de novo proceeding is given the opportunity and responsibility to develop and demonstrate, with various shifting burdens of proof, its respective position concerning the issue of consistency.

       
       

   15. While the instant administrative proceeding is designated by statute as an "appeal," (Section 380.07, Florida Statutes), it is not an "appeal" in the usual technical sense, especially where the parties have agreed to a de novo proceeding. The "appeal" is merely an application to a higher authority. Transgulf Pipeline Company v. Gadsden County, 438 So.2d 876 (Fla. 1st DCA, 1983). This is made clear in Section 380.07(3), Florida Statutes, which mandates the conduct of a hearing in accordance with Chapter 120. The Development Order "appealed" becomes the preliminary agency action and the Chapter 120 proceeding, when timely sought, is intended to formulate the final agency action to be taken. McDonald v. Department of Banking and Finance, 346 So.2d 56,9 (Fla. 1st DCA, 1977). Thus, there is no presumption of correctness to the Order from which the "appeal" is taken. Instead, the various positions of the parties are subject to proof to be adduced at the administrative hearing. This is particularly true since FLWAC has the ultimate responsibility, subject to judicial review, of balancing local, regional and private interests.

       
       

   16. When reviewing the evidence adduced by the various parties with regard to the consistency of a proposed development with the local comprehensive plan, great weight and deference should be given to evidence presented by the local government regarding the meaning and intent of its plan. In the same sense that an agency's interpretation of its own rules or statutes is entitled to great weight, Florida Waterworks Association v. Florida Public Service Commission, 473 So.2d 237 (Fla. App. 1st, 1985), a County's interpretation and construction of its comprehensive plan is due great deference. It is only when the opposing party demonstrates that the County's interpretation is arbitrary, unreasonable or clearly erroneous that the County's interpretation should not be deferred to. This is not the same as a presumption of correctness of the Development Order, 1/ nor is it a "fairly debatable" standard of review applied to the Development Order. Instead, the parties must present proof at the hearing with respect to their conflicting interepretations of the comprehensive plan, and the evidence presented by the County (the entity charged with the implementation and enforcement of the plan) is entitled to great weight and persuasive force.

       
       

   17. Turning now to the application of these principles to the facts adduced at the hearing, the issues can be narrowed. The evidence demonstrates that the Plantation project, under each of the three proposed scenarios, would create impacts upon such regional concerns as the environment, natural resources, public facilities and transportation facilities in the area. However, the applicant has affirmed its willingness to comply with each of the numerous conditions suggested by the ECFRPC should its proposed project be approved. Compliance with those conditions, along with future monitoring and

       permitting requirements, would adequately alleviate the adverse regional impacts created by the proposed development.

       
       

   18. The consistency of the proposed Plantation development with the Seminole County comprehensive plan is the remaining and prime issue for determination in this proceeding. The applicant argues that the County's denial is based solely upon an arbitrary density cap and fails to consider other policies and objectives within the Plan. The County and intervenors urge that the proposed Plantation would inject a clearly urban intensity development into a rural area and disrupt the character and development trends of Planning Area

       I. Relying not only upon the density requirements in the Plan, the County contends that the Plantation, as proposed, would be inconsistent with the Plan's

       provisions relating to transportation, commercial land uses and public facilities, such as water and sewer services.

       
       

   19. After a careful review of all the oral and documentary evidence adduced in this proceeding in accordance with the principles expressed herein, it is concluded that the proposed Plantation development is clearly inconsistent and incompatible with the objectives, policies, land uses and densities or intensities expressed in the comprehensive plan adopted by Seminole County.

       
       

   20. The proposed project clearly exceeds the density policies for Planning Area I, an unmapped area classified as "general rural." This classification encourages one dwelling unit per five acres while permitting one unit per acre. The present land use trends in the area surrounding the Plantation site are rural in nature. If approved, the proposed development would inject an urban density and intensity into an area in which the development history, patterns and trends, as well as the community character and stated plans for the area, are rural in nature. Such a development could also serve as precedent for similarly situated property in the area. The general and more specific land use policies for rural areas in Planning Area 1 clearly prohibit a development with densities of 1600, 1240 or 1088 on the Plantation site. It is true that two other residential, high density developments exist in Planning Area I. However, they are distinguishable and their existence does not support the applicant's allegation of arbitrariness. Both developments are located near Interstate 4 and its interchanges, which are recognized in the Plan as "special economic areas." The prior zoning of the Kingswood property indicates an intent that that property would be developed more intensely than the Plantation site, which is zoned agriculture. The Heathrow development was approved prior to the Plan's adoption, but it, too, complies with the Plan's interchange area policies, as well as the policy against urban sprawl.

       
       

   21. In addition to the density considerations set forth in the Plan for Planning Area I, the Plantation would be incompatible and inconsistent with both the transportation policies and plans for the area and with the Plan's provisions relating to commercial land uses, as discussed in Paragraph 18 of the Findings of Fact. Likewise, the plans for this project are inconsistent with the County's planning process with respect to roads in the area and with respect to water and sewer services in the area. The County's long range transportation and public facilities plans have been legitimately based upon the assumption of a density of no more than one dwelling unit per acre at the Plantation site.

       
       

   22. Local governments are charged with the responsibility of regulating land developments pursuant to their comprehensive planning programs. Section 163.3194, Florida Statutes. Seminole County does have a comprehensive plan for Planning Area 1, expressed in terms of both broad and more specific policies and objectives. Accordingly, any development proposed in that area must be consistent with that comprehensive plan. Section 163.3194(3), Florida Statutes, provides a definition of "consistency."

       
       

       (b) A development approved or undertaken by a local government shall be consistent with the comprehensive plan if the land uses, densities or intensities, capacity or size, timing and other aspects of the development are compatible with and further the objectives, policies, land uses and densities

       or intensities in the comprehensive plan and if it meets all other criteria enumerated by the local government.

       
       

   23. The Plantation development proposes densities considerably greater than authorized in the comprehensive plan, and also contravenes the transportation, commercial land use and public facilities policies and objectives of the Plan. Accordingly, it must be concluded that the proposed DRI is inconsistent with the local comprehensive plan.

       
       

   24. The applicant contends that the County has been unidimensional in its approach by relying only upon the residential density policies in its comprehensive plan. Not only is this assertion refuted by evidence of the County's concerns regarding transportation, strip commercial development and public facilities, but the charge of unidimensionalism would appear to be more applicable to the applicant's approach in attempting to demonstrate Plan consistency. In that effort, the applicant relies almost exclusively upon a sentence in the Short Range Development Plan that reads, under the heading of 1, Future Land Use, "to discourage urban zoning unless provisions are made for an adequate level of urban facilities and services." To give this policy the meaning sought by the applicant (that urban zoning is not discouraged if provisions are made for adequate urban facilities and services) would be to disregard and render meaningless all distinctions in the Plan between urban and rural land uses and development.

       
       

   25. It being concluded that the proposed Plantation DRI is inconsistent with the Seminole County Comprehensive Plan, the only remaining inquiry is whether there are regional benefits associated with the project which outweigh local planning considerations. As noted above, the evidence supports a conclusion that if the development were constructed and operated in accordance with the conditions imposed by the ECFRPC, along with future environmental permitting requirements, the adverse impacts of regional concern would be alleviated. Such a conclusion, however, is not tantamount to a finding of regional or statewide benefits from a project. There was no competent, substantial evidence presented at the hearing to support such a finding. Consequently, there are no factors to balance as between regional and local interests. Likewise, there was no evidence presented to the effect that a denial of development approval would result in an unlawful or unreasonable taking of the applicant's property. Therefore, there are no factors to balance as between the local governmental interest and the private interest of the developer.

       
       

   26. Two further issues remain. Over the objection of the County and the intervenors, the developer was permitted to submit evidence of two scaled-down versions of its original Plantation proposal. The revisions entailed a lesser number of dwelling units and reduced impacts resulting therefrom. A continuance of the hearing was granted to afford the other parties an opportunity to review these revisions. While the County presented some persuasive arguments concerning the inappropriateness of allowing revisions of the development proposal after the Regional Planning Council had rendered its report and the Development Order had been entered by the County, the submission of alternate plans appears to have been judicially sanctioned. Fox v. Treasure Coast Regional Planning Council, 442 So.2d 221 (FLA. 1st DCA, 1983), and cases cited therein.

       
       

   27. Finally, it is concluded that the County's indication in its Development Order of changes in the development that would make it eligible to

receive approval was not inappropriate under the circumstances presented. The density of the development in the rural area proposed is inconsistent with the policies, objectives and land uses in the Plan. It is those densities, and consequent increases in population, which necessitated the applicant's proposals with regard to transportation, public facilities and a commercial site, which proposals were also inconsistent with the Plan's policies, objectives and land uses. Thus, it was reasonable to indicate that a proposal with maximum densities of one dwelling unit per acre would be eligible for approval and consistent with the Plan. Likewise, it was reasonable to suggest that the applicant await the amendment of the Plan or the adoption of a new Plan in accordance with Chapter 163, Florida Statutes, and then propose a project which would be compatible with such a Plan.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that The Florida Land and Water Adjudicatory Commission DENY the application for development approval for the Plantation Development of Regional Impact because the proposal submitted and revised is inconsistent with the Seminole County Comprehensive Plan.

Respectfully submitted and entered this 22nd day of October, 1987, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings on this 22nd day of October, 1987.

ENDNOTE

1/ Contrast Section 380.065, as reported in West's Florida Statutes Annotated, 1987 Supplementary Pamphlet, which provides for future local government certification to review DRIs. Subsection (3) of that section states that the findings of fact and conclusions of law in the Development Order issued by a certified local government "are presumed to be correct on appeal." The local government certification process does not become effective until the State comprehensive plan and the regional comprehensive policy plan have been adopted.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3249

The proposed findings of fact submitted by the parties have been accepted and/or incorporated in this Recommended Order, except as noted below:

Petitioner Amcor:

6. Partially rejected. The evidence demonstrates that the County considered more than the density/intensity policy.

1. Rejected insofar as it implies that policies cannot constitute a "land use plan."

2. Rejected as contrary to the evidence.

3. Partially rejected. The density is dependent upon the number of units proposed.

19. Rejected as contrary to the evidence.

1. Partially accepted, with the caveat that other policies and objectives must also be considered.

2. Partially accepted. The degree of growth and change in the area surrounding the Plantation site was not established by competent, substantial evidence.

27. Rejected, but proposed finding is accepted.

31. Accepted without the word "adequate," as there was insufficient evidence to prove adequacy.

1. Last sentence rejected as contrary to the evidence.

2. Rejected, not established by competent, substantial evidence.

44. Accepted only with the recognition that the planned service is for a capacity of one dwelling unit per acre.

47. Accepted, only if the factors of location and maintenance are considered.

1. The term "benefits" is rejected. See discussion in Conclusions of

   Law.

   
   

2. See number 47 above.

3. - 59. Rejected as contrary to the greater weight of the evidence.

Respondent County:

3. Accepted as correct, but not included as irrelevant to the issues in this proceeding.

15. Last sentence rejected as contrary to the evidence.

17. Last sentence rejected. The proper classification was not established by competent, substantial evidence.

20. - 24. Accepted with the recognition that phased monitoring could cure the defects noted.

26. Accepted as opinion testimony, not legal conclusions.

35. Factual statements accepted as accurate, but the characterization of the testimony is rejected as improper factual findings.

51. Rejected, as improper factual finding and erroneous legal conclusion.

For Intervenor Friends of the Wekiva River and Markham Woods Association:

1. Accepted as an accurate reflection of testimony presented at the public comment session, but not included due to its speculative nature.

2. - 11. Accepted as an accurate summary of the witness's testimony, but, absent evidence of noncompliance with ECFRPC's conditions and future permitting requirements, such conclusions cannot be sustained.

1. Last sentence rejected. Any such conclusion is dependent upon site specific information, as well as the degree of maintenance of the two systems being compared.

2. Last two sentences rejected, as not established by competent, substantial evidence.

For Intervenor League of Women Voters of Seminole County:

30. Rejected as an incomplete assumption and description of the stormwater system proposed.

35. Accepted as a general statement, but rejected as to any specific number of units.

40. Testimony concerning the Lake Mary Boulevard extension was conflicting; therefore, a factual finding in that regard cannot be made.

[NOTE: The intervenors Friends of the St. John's, Inc. and the Department of Community Affairs, while submitting post-hearing closing arguments and/or memorandum of law, did not submit proposed findings of fact. The intervenor East Central Florida Regional Planning Council did not submit any documents after the hearing.]

COPIES FURNISHED:

The Honorable Bob Martinez Governor, State of Florida The Capitol

Tallahassee, Florida 32399

The Honorable Bob Butterworth Attorney General

State of Florida The Capitol

Tallahassee, Florida 32399-1050

The Honorable Doyle Conner Commissioner of Agriculture State of Florida

The Capitol

Tallahassee, Florida 32399-0810

The Honorable Betty Castor Commissioner of Education State of Florida

The Capitol

Tallahassee, Florida 32399

The Honorable Jim Smith Secretary of State State of Florida

The Capitol

Tallahassee, Florida 32399-0250

The Honorable William Gunter Treasurer and Insurance Commissioner State of Florida

The Capitol

Tallahassee, Florida 32399-0300

The Honorable Gerald A. Lewis Comptroller, State of Florida The Capitol

Tallahassee, Florida 32399-0305

John C. Dent, Jr., Esquire John F. Cook, Esquire Culverhouse & Dent

Post Office Box 3269 Sarasota, Florida 33578

Bram E. Canter, Esquire Ralph Haben & Associates Post Office Box 10095

306 North Monroe Street Tallahassee, Florida 32301

Stephen F. Story, Esquire Culverhouse, Boots & Culverhouse Post Office Box 23688

Tampa, Florida 33607

Nikki Clayton, Esquire Lonnie N. Groot, Esquire

Office of the County Attorney 1101 East First Street Sanford, Florida 32771

Thomas B. Dewolf, Esquire Dewolf, Ward & Morris, P.A. 1475 Hartford Building

200 East Robinson Street Orlando, Florida 32801

Richard S. Jackson, Esquire Clayton & Teal, P.A.

114 west Rich Avenue Deland, Florida 32720

Larry Keesey, Esquire

Jeffrey N. Steinsnyder, Esquire David Jordan, Esquire

Florida Department of Community Affairs 2571 Executive Center Circle East Tallahassee, Florida 32301

Gerald Livingston, Esquire Post Office Box 2151 Orlando, Florida 32802

Judy Johnson, Esquire Route 1, Box 318 G

Hawthorne, Florida 32640

Glenn W. Robertson, Secretary Director, Planning & Budgeting Executive Office of the Governor The Capitol

Tallahassee, Florida 32399-0001

Docket for Case No: 86-003249

Orders for Case No: 86-003249